Can Passengers Drink Alcohol In a Car?

While you likely know that you are prohibited from driving while you are drinking or have used drugs, you might wonder whether it is legal for passengers to drink alcohol while they are riding in vehicles. In Pennsylvania, it is illegal for a passenger or a driver to have an open container of alcohol in a vehicle regardless of whether you are actually drinking from it. The legal team at DiCindio Law can defend you if you have been charged under Pennsylvania’s open container law.

Open container laws

A majority of the states have open container laws that prohibit open containers, including bottles and cans, of alcoholic beverages in vehicles. In Pennsylvania, the open container law is codified at 75 Pa. C.S.A. § 3809. Under this statute, drivers and passengers are both prohibited from having open containers of alcoholic beverages in their vehicles. It does not matter if the driver or the passenger is actually drinking alcohol from the container at the time of the stop.

Forty-three states, including Pennsylvania, have open container laws, and 40 have laws that follow the standards outlined in the federal Transportation Equity Act for the 21st Century. This law mandates a variety of different traffic safety measures, including the enactment of open container laws.

Drivers may be cited under the open container law if they have an alcoholic container on them or within their reach. Passengers who have open containers may also be cited. If a passenger has an open container, both the passenger and the driver may be cited under the open container statute in Pennsylvania.

Is the legal use of alcohol a defense?

You can’t defend against a violation of the open container law simply because you are legally permitted to drink alcohol. The prosecution simply has to prove that you violated the law or had an open container of alcohol in your vehicle.

Other substances

The law also prohibits passengers and drivers from consuming drugs in a motor vehicle. This includes any drug that is defined in the Controlled Substance, Drug, Device and Cosmetic Act. This means that a passenger who is prescribed medical marijuana cannot ingest it while he or she is riding in someone else’s car.

Open container exceptions

Every state that has an open container law also has exceptions to it. State exceptions to open container laws can be divided into two main categories, including the following:

  • Certain areas of the vehicles- Open containers typically can be kept in the vehicle’s trunk or an area that is not easily accessible to the passengers or driver.
  • Certain types of vehicles- Many states permit storing open containers in the living areas of motor homes. Many states also allow passengers to drink alcohol and to have open containers in limousines, party buses, or taxis. Some states also permit you to transport an open container of wine home from a restaurant. However, in states where this exception exists, you will still be required to store your wine bottle in your trunk or in another area that is not accessible.

In Pennsylvania, there is not an exception listed in the law for transporting open containers in your trunk or in an area that is not easily accessible. The law does include two exceptions, however. You are allowed to have alcohol in the living area of a motor home or trailer. You can also have an open container in a taxi, party bus, or limousine that is a for-hire vehicle.

Penalties for violating the open container law

An open container offense is punishable as a summary offense, which is the lowest level of offense in Pennsylvania. If you are convicted of violating the open container law, you can face up to 90 days in jail and a fine of up to $300.

Why you should get help from an experienced criminal defense lawyer

If you have been charged with a violation of the open container law, it is a good idea for you to seek help from an experienced criminal defense lawyer at DiCindio Law. Just because you have been charged does not mean that you will necessarily be convicted. Our attorneys will review the facts and circumstances of your stop to determine the potential defenses that might be available to you. If we identify problems with how the stop and search of your vehicle were conducted by the police officer, we may be able to file evidentiary motions to suppress the evidence against you.

Law enforcement officers must have probable cause to believe that you had an open container in your vehicle. They cannot conduct an illegal search of your vehicle in order to discover evidence to use against you. If the officer in your case conducted an illegal search, we may be able to have the search and the evidence against you deemed to be inadmissible. This could lead to a dismissal of the charge against you. Even if the officer conducted the search in a lawful manner, we might still be able to identify other potential defenses to raise on your behalf. Contact DiCindio Law today to schedule a consultation so that you can learn more about your case and the potential defenses that might be available to you.

What Is the Difference Between DUI and DWI?

You might have heard the acronyms DUI and DWI used interchangeably. DUI stands for driving under the influence. DWI may stand for driving while intoxicated or driving while impaired by drugs or alcohol. Depending on the state, these two terms can refer to the same offense or can have different legal definitions.

In all states, being charged with a DUI or a DWI means that you are being charged with an offense that is serious. DUI offenses mean that you are facing charges of engaging in conduct that risks your own safety as well as that of others. DUI offenses can be charged when you have been driving after drinking alcohol, using recreational drugs, or driving after you have taken certain prescription medications that cause your driving ability to be impaired. No matter what your charge might be called, it can have a major impact on your life. At DiCindio Law, we represent people who are facing Pennsylvania DUI charges to help them to secure the most favorable resolutions to their cases.

DUI and DWI definitions

The definitions of what constitutes a DUI and what constitutes a DWI vary from state to state. In some states, a DUI refers to driving after drinking alcohol. In others, it might refer to driving under the impairment of drugs. Some states use DUI as a term for a lower level of impairment while a DWI refers to a higher level of impairment. Other states have that reversed. Some states only use one acronym or the other to refer to alcohol- and drug-related driving offenses. It can become tricky when a state uses both terms.

OUI and OWI

Some states use different acronyms all together for drunk driving. For example, three states, including Massachusetts, Maine, and Rhode Island, use the acronym OUI. OWI is used to refer to operating while intoxicated in some locations.

DUI in Pennsylvania

Pennsylvania uses the term DUI. While people may use the terms DUI and DWI interchangeably in the state, they both refer to the same statute.  Pennsylvania law divides DUI offenses into three levels, according to the level of intoxication as measured by the blood alcohol concentration. A general impairment DUI offense describes a BAC of 0.08 to 0.099. A high BAC DUI refers a DUI with a BAC of 0.10% to 0.159%. A highest BAC DUI offense refers to a BAC of 0.16% or higher. The penalties for these different levels of DUI offenses vary.

Despite the different tiers of DUI offenses in Pennsylvania, your blood alcohol concentration is not the sole factor in determining whether you were driving while you were impaired by alcohol or drugs. Being charged with a DUI can occur if an officer has a reasonable belief that you were too impaired to drive. This means that you can be charged with a DUI offense even if you do not submit to testing or when the officer believes that you were impaired. For instance, if the officer observes signs that you are impaired such as bloodshot eyes, a smell of alcohol, slurred speech, an unsteady gate, and other indicators of impairment, you may be charged.

Drugged driving is considered to be impaired driving

You can be charged with a DUI offense even if you submit to a preliminary breath test at the side of the road that is negative for the presence of alcohol. Because of the observations that the officer has made, he or she might believe that you are under the influence of another substance that may be impairing your ability to drive. This can include illegal drugs, over-the-counter medications, and prescription drugs that you are legally prescribed to take. The officer who stopped you is able to call a drug recognition expert to come to the scene who can perform some different tests.

It is important for you to read the warning labels on all over-the-counter and prescription medications that you take before you get behind the wheel. If you don’t, you may be at risk of being charged with a DUI regardless of the legality of your medication.

Consequences of a DUI arrest

If you are arrested and charged for a DUI, you may face serious penalties. Depending on your BAC, the penalties may be more severe for higher levels. If you are convicted of a DUI or enter a guilty plea, you may lose your driving privileges, be assessed penalties and court fees, face time in jail, be ordered to attend alcohol classes, and other penalties. You might also be placed on probation and be required to perform community service hours.

You may be required to submit to an assessment of your substance use or drinking and to follow any recommendations that are made from this assessment. Beyond these penalties, you might also face some collateral consequences such as losing your job, having trouble finding a new job, being embarrassed, and having a criminal record. Your insurance premiums will also likely increase for several years, and you might have to have an ignition interlock device installed in every vehicle that you drive at your own expense.

Regardless of what the offense might be called, getting arrested and charged for a DUI can be very expensive and time-consuming. You can avoid these types of charges by not getting behind the wheel when you are impaired. If you have been charged, it is a good idea to get legal help as soon as possible. At DiCindio Law, we can review your charges and help you to understand the legal options that might be available to you. Call us today to schedule a consultation, or fill out our online contact form.

Can I Appeal My DUI Conviction?

If you go to trial to fight your DUI charge and are found guilty of the offense, that does not mean that your case is necessarily over. You have the right to appeal a conviction for a crime to a higher court. If you win your appeal, you may be granted a new trial, and your conviction may be overturned.

Appeals do not work the same way as criminal trials do. Typically, appeals move much slower than trials. While trials might involve a lot of time in court with witnesses testifying and attorneys presenting arguments to the jury, appeals are primarily argued through written appellate briefs. Here is what you might generally expect to occur when you appeal a DUI conviction with the help of DiCindio Law.

Notice of appeal

Before you can file an appeal, you must first file a notice of appeal in the court in which you were convicted. Under 210 Pa. Code Rule 903, your notice of appeal must be filed within 30 days of the date when the order of your conviction was entered with the trial court. You must fill out the paperwork for the notice of appeal and file it with the clerk of the court.

The appellate record

After you have filed your notice of appeal and any request for a transcript, the clerk of the court will stamp your notice with the date that it was received. It will then be transmitted to the Court of Appeals, and the Court of Appeals will order the clerk to produce the record on appeal. The record on appeal usually includes the trial transcripts together with the motions and orders that were filed with the trial court.

Under 210 Pa. Code Rule 906, you must file proof of service and your transcript requests when you file your notice of appeal. Once it has been filed, you will need to serve it on the trial court judge, the court reporter, the prosecutor, and the court administrator. Under 210 Pa. Code Rule 1931, the court clerk and court reporter will have 60 days to gather together the documents and transcripts for the record on appeal and to transmit them to the Court of Appeals. When the record is ready, copies will be sent to the court of appeal, the prosecutor, and to you as the appellant.

Right to be represented by an appellate attorney

You have the general right to have an attorney to represent you when you appeal a DUI conviction. If you cannot afford to pay for a lawyer, an appellate lawyer will be appointed to represent you by the state. While you can represent yourself when you appeal a DUI conviction, it is typically not a good idea. To increase your chances that you might succeed on your appeal, it is better to get the help of an experienced appellate lawyer who understands the rules and procedures involved with appeals.

Briefs

Your attorney and the prosecutor will write arguments in documents that are called briefs. The arguments that the lawyers can make can only be based on what is contained in the appellate record. You are not allowed to present new evidence or to rely on any information that was not presented at your trial. An appeal of your DUI conviction is not a new trial. It is simply a review of any error that might have taken place in your trial or motions hearings.

The brief that your attorney will write and file on your behalf is called the opening brief. In it, he or she will make the arguments of why your conviction or sentence was not proper. After the opening brief is filed, the prosecutor will be able to respond to it with a response brief. Prosecutors typically try to give arguments about why the sentence or conviction is proper. After the response brief is filed, your attorney will receive a copy and will be able to file a reply brief. Filing a reply brief provides you with the opportunity for your attorney to respond to the arguments that are made by the prosecutor. The process of filing these briefs can take up to about six months.

Oral argument

In Pennsylvania, the court of appeals that hears appeals of criminal matters is the Superior Court. Once your attorney and the prosecutor have filed all of their briefs, the Superior Court will schedule a date for them to present oral arguments.

Both your attorney and the prosecution will be able to present oral arguments directly to the appellate judges. If the judges have questions, the attorneys will have the opportunity to answer them. Each attorney will be allotted a specific amount of time during which they can make their oral arguments. When they are finished, the appellate judges will make their decision after they leave the bench.

The opinion

The decision that the Superior Court makes is issued in a written opinion. In some cases, the opinion may be filed shortly after the presentation of the oral arguments. In others, it may take months before the opinions are issued.

Most people do not win the appeals of their DUI convictions. The Superior Court sometimes affirms the trial court’s ruling in full, which means that it rejects your arguments. If this happens, your conviction and sentence will remain.

In some cases, the Superior Court will agree with the appellants because of the existence of some types of legal errors that could have impacted the outcome of the cases. In these cases, the Superior Court will reverse the portion of the sentence or conviction that was in error. A reversal could result in the conviction being overturned or it could result in changes to some of the terms of your sentence. If you lose your appeal, you may have the option to ask the Pennsylvania Supreme Court to permit an appeal to them.

Get help from DiCindio Law

If you want to appeal a conviction for a DUI, you must act quickly. You only have a limited time to file the notice of appeal with the trial court. Contact DiCindio Law today by filling out our online contact form to schedule a consultation and to get help with filing an appeal.

What Are Aggravating Factors in DUI Cases?

Many states have two different types of drunk driving charges, including driving under the influence offense that typically may be charged when your blood alcohol concentration is 0.08% or higher. The other type of DUI charge in those states is an aggravated DUI. What constitutes an aggravated DUI varies from state to state. Some states have aggravating factors that automatically enhance the penalties for a DUI, including having a minor in the car, having an accident with injuries, or having a high BAC.

Pennsylvania does not have a specific aggravated DUI offense. However, it does have three DUI levels. Two of these levels carry enhanced penalties and include factors that may be considered to be aggravating. If you have been charged with a DUI, contact DiCindio Law to get help.

Aggravating factors in a Pennsylvania DUI charge

A driving under the influence charge already has serious consequences. In some cases, however, the circumstances may result in you being charged with a higher-level DUI that carries enhanced penalties beyond the normal sentence for a regular DUI conviction. Having specific aggravating factors present in your case may result in your charge being raised to a higher level.

Pennsylvania’s DUI law has three different levels of DUI offenses. A DUI or general impairment is charged when someone has a BAC of 0.08% or higher up to 0.099%. If a person’s blood alcohol concentration is 0.10% up to 0.159%, he or she may be charged with a high BAC DUI. Finally, if someone has a BAC of 0.16% or higher, he or she may be charged with the highest BAC DUI offense.

The high BAC and highest BAC DUI offenses carry more severe penalties than the general impairment DUI offense. In addition to your BAC, there are other factors that could result in enhanced penalties. The prosecutor can decide to include these types of factors in your charges to increase the consequences that you might face. Here are a few examples of factors that could lead to you facing more serious penalties for a DUI offense.

High or highest blood alcohol concentration

All states have a legal limit for the amount of alcohol in your blood while you are driving. In most of the states, the limit is set at 0.08%. In Pennsylvania, the limit is set at 0.08%. Under the law, there is a presumption that you have committed a DUI offense when you are caught driving with a BAC of 0.08% or higher.

When you submit to a test and are shown to have a BAC of 0.10% or higher, you may be charged with one of the two higher level DUI offenses. If your blood alcohol concentration is between 0.10% and 0.159%, you may be charged with a high BAC DUI. If it is 0.160% or higher, you may be charged with the highest BAC DUI offense. These higher-level offenses carry the potential for longer periods of incarceration, higher fines, and other additional penalties. In the case of a high or highest DUI offense, an experienced DUI defense attorney may challenge the traffic stop or the way in which the testing was conducted.

Multiple DUI convictions

If you have one or more prior DUI convictions, your sentence for a subsequent DUI conviction may be enhanced. This includes when your prior DUI conviction happened in a different state. Repeat DUI offenders are punished more harshly to try to deter them from driving drunk after they have had their first conviction.

In Pennsylvania, having a prior DUI will increase the consequences that you might face. There is a lookback period of 10 years, which means that if you have had a prior DUI conviction during the last 10 years, you may face enhanced penalties. For example, the minimum jail time for a first general impairment DUI conviction in Pennsylvania is no jail time. For a second general impairment DUI conviction, the minimum jail time is five days up to 6 months. For a third general impairment DUI conviction within 10 years, the minimum jail time is 10 days up to two years.

Causing an injury accident

If you cause an accident that seriously injures someone else while you were driving under the influence, you can face enhanced charges and can be charged with aggravated assault while driving under the influence under 75 Pa.C.S.A. § 3735.1. This offense is a second-degree felony that carries a potential penalty of up to 10 years in prison in addition to other serious penalties.

When minors are in the vehicle

Having children in your car at the time that you are arrested for a DUI offense can result in enhanced penalties. Pennsylvania enhances the penalties for a DUI conviction if you have a child who is 14 years old or young in your car at the time of your arrest.

What to do

If you are facing a DUI charge and have one or more aggravating factors present, it is important for you to meet with a criminal defense lawyer who is experienced in defending against DUI charges of all levels. An attorney at DiCindio Law may be able to identify ways to defend against the charges against you. Having experienced legal representation may help you to secure a lesser sentence, to obtain a lesser charge, or to win the dismissal of the charges against you in some circumstances. An attorney may be able to negotiate with the prosecutor who is assigned to your case in an effort to secure the most favorable outcome possible in your case. To learn more about the rights that you have, schedule a consultation with a criminal defense lawyer at DiCindio Law by filling out our online contact form.

Proving a DUI Charge at Trial

If you are facing charges of driving under the influence of drugs or alcohol in Pennsylvania, you will need to decide whether to accept a plea offer or to instead take your case to trial. If you choose to go to trial, the prosecutor will have to prove the DUI charge against you beyond a reasonable doubt before you can be convicted of the offense. Every element of the DUI charge must be proven beyond a reasonable doubt at your trial. The legal team at DiCindio Law can help you to evaluate your case to determine whether or not you should go to trial or if you should instead accept a plea offer.

What are the elements of a DUI in Pennsylvania?

Every crime in Pennsylvania is made up of a number of elements. These are the individual parts of an offense that a prosecutor must be able to prove beyond a reasonable doubt before a defendant can be found guilty at a trial. If the prosecutor is unable to prove one of the elements of your DUI offense beyond a reasonable doubt, you should be found not guilty even if the prosecutor is able to prove the other elements. To prove that you committed a DUI, the prosecutor will need to prove each of the following elements beyond a reasonable doubt:

  • You are the person who was charged;
  • The offense happened on a specific date and time and in a specific location;
  • You drove, operated, or had actual physical control of the vehicle’s movement
  • You had consumed alcohol; and
  • The alcohol that you consumed was to the extent that your driving was impaired.

If you submitted to a Breathalyzer test, you may be charged with a DUI if your blood alcohol content was 0.08% or higher. You may be charged with higher levels of DUI offenses if your BAC fell into the range of 0.10% to 0.15% or was 0.16% or higher.

Driving, operating, or being in actual physical control of a vehicle

While a majority of DUIs involve driving a car or other vehicle, it is possible for you to be charged with a DUI even if your vehicle was not actually moving. If you were charged with drunk driving when your vehicle was not actually moving, the court or jury will consider multiple factors when determining whether you were operating or in actual physical control of your car, including the following:

  • Your car’s location
  • Whether the engine was running
  • Your location in the car
  • Whether you had your keys in your possession
  • Whether your car was legally parked
  • Whether you were asleep or awake
  • Whether your vehicle’s lights were off or on

In cases in which the defendant was not actually seen driving the car, the jury or judge will consider these and other factors that might indicate whether you were in actual physical control of your vehicle or had been operating it. For example, if you went to your car and fell asleep in it after visiting a bar without driving it home, it is possible that you might still be charged with a DUI. Whether you will be convicted of the offense will depend on the jury’s or judge’s analysis of the factors.

You had consumed alcohol

The prosecutor can prove that you consumed alcohol when there is no BAC test by introducing other evidence. In many cases, this may include the testimony of the officer who stopped you. The officer may testify about your performance on any roadside tests, whether you had reddened eyes, whether you slurred your speech, and about other observations that he or she made about you.

If you did submit to a BAC test, the prosecutor may use your results to try to prove that you had consumed alcohol.

Impaired or intoxicated by alcohol

To prove that you were impaired or intoxicated by the alcohol that you consumed, the prosecutor can show that your blood alcohol concentration was at or above 0.08%. He or she may also prove this element by proving that you were impaired through other types of testimony.

A prosecutor file a charge for DUI per se as well as a charge for driving while impaired against you when your BAC was 0.08% or higher. Prosecutors do this because they hope that at least one of the charges will be successful. If your BAC was above the legal limit, the prosecutor may find that proving a DUI per se charge against you is easier than proving that you were actually impaired.

Why you should get help from DiCindio Law

A DUI conviction can have serious consequences for your life. In addition to the potential criminal penalties, a DUI conviction may cause collateral consequences that can continue to negatively impact you long after you have completed your sentence. Getting help from an experienced criminal defense attorney can help you to weigh your options and to determine whether you should go to trial or should accept a plea offer. To learn more about your case, contact DiCindio Law to schedule a consultation.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

DUI with Blood Alcohol Over .16

In West Chester and throughout Pennsylvania, driving under the influence is treated seriously by law enforcement officers and the courts. If you are stopped by the police on suspicion of driving under the influence of alcohol, you may face even more serious penalties if your blood alcohol concentration tests at 0.16 percent or higher. This is considered to be the highest BAC level under Pennsylvania law, and it can bring a harsher punishment than if your BAC tests lower.

The impact of getting charged and arrested for a DUI with a BAC of 0.16% or higher can be damaging. Your license may be suspended for a year or more, making it difficult for you to get to where you need to go. You might also face several months to years of jail, substantial fines, and other penalties. If you have been charged with a high-BAC DUI offense, it is important for you to retain a criminal defense lawyer from DiCindio Law who is experienced in handling DUI cases as soon as possible.

What is a BAC level?

When the police stop people and suspect that they are under the influence of alcohol, the officers may ask them to submit to a breathalyzer or blood test. These tests are different than the preliminary breath tests that may be administered at the side of the road and are instead performed at the police station with a breathalyzer machine or by medical personnel who use blood draws to draw samples for laboratory analysis.

Your blood alcohol concentration refers to the percentage of alcohol that you have in your breath or blood at the time of your testing. Police ask motorists that they suspect of drunk driving to submit to one of these tests to determine the level of alcohol that they have in their blood.

In Pennsylvania, anyone who is found to have a BAC of 0.08% or greater will be charged with a DUI. If your BAC is 0.16 or higher, the potential penalties will be more severe.

You must be tested within two hours of the time of your stop. If you refuse, you may immediately lose your license for a year or longer.

What are the penalties for a high-BAC DUI of 0.16% or higher?

In Pennsylvania, people who are convicted of driving under the influence will face different penalties, depending on their BAC level and any prior offenses that they might have.

If you have never been charged with a DUI before and have a BAC that tests at more than 0.16%, you may face the following penalties:

  • From three days up to six months in jail
  • A fine of $1,000 up to $5,000
  • Mandatory attendance at alcohol safety school
  • The installation of an ignition interlock system for a year
  • Potential mandated attendance in a court-ordered alcohol treatment program

If you have a prior DUI conviction and are charged with a DUI when your BAC was higher than 0.16%, the penalties may be enhanced as follows:

  • Jail ranging from a minimum of 90 days up to five years
  • Suspension of your driver’s license for 18 months
  • Fine ranging from $1,500 to $10,000
  • Attendance at alcohol safety school
  • Ignition interlock system in your car for a year
  • Possible requirement to undergo court-ordered alcohol treatment

If you have two prior DUI convictions and are charged with a DUI when your BAC tests at more than 0.16%, you may face the following potential penalties:

  • Jail from one to five years
  • Suspension of your license for 18 months
  • Fine ranging from $2,500 to $10,000
  • Ignition interlock system installed for one year
  • You may also be ordered to undergo alcohol treatment

In addition to these penalties, there are collateral consequences that you could face. If you are convicted, you will have a permanent criminal record. A criminal record can make it harder for you to obtain employment or housing, and it may also be embarrassing for you. Your auto insurance premiums will likely increase. If you caused a death or injury when you were driving under the influence of alcohol, your sentence may be more severe. Finally, you may be sued in civil court for damages for any injury accident that you might have caused.

When your BAC tests at 0.16% or higher, you will be required to undergo an assessment for drug and alcohol addiction. If you are determined to have an addiction, you may be ordered by the court to complete a treatment program.

What to do if you are charged with a high-BAC DUI

If you are charged with a DUI with a BAC of 0.16% or higher, you should immediately retain an experienced West Chester DUI attorney at DiCindio Law. This offense is serious, if you are convicted, you could be sentenced to jail for up to several years. An experienced lawyer can start working on your case before your first hearing occurs.

You should receive a copy of the criminal complaint against you soon after your arrest. You should bring this document with you to show your lawyer so that he or she can see the specific charges that you are facing. After you have received your charges, the court will schedule a preliminary hearing. At this hearing, you will hear the options that you have. Having an attorney present to represent you can help you to secure the most favorable outcome that is possible for your case.

What defenses might be available?

If you decide to turn down a plea offer and go to trial, your lawyer will work to identify the possible defenses that are available to you. Some of the possible defenses might include the following:

  • There was no probable cause for the officer to stop you;
  • There was no probable cause for the officer to test you;
  • The results of your test were inaccurate;
  • The machines used for your test was faulty, inaccurate, or incorrectly calibrated; or
  • You were tested after the two-hour window had passed.

If the officer did not have probable cause to stop your car, your lawyer may seek to suppress the evidence against you. If your lawyer was successful, the charges would likely be dismissed. If other types of motions are successful, it could lead to a reduction in your charges. Getting help from an experienced DUI lawyer in West Chester can help you to determine whether any of these types of errors might have happened in your case. To learn more about your rights, contact DiCindio Law today by calling 610.430.3535.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

DUI While on Probation

Getting a DUI in Pennsylvania is bad at any time. When you are already on probation for a different criminal conviction, getting a DUI charge can be especially problematic. If you are convicted, your probation may be revoked. You may also have to serve time for both your underlying DUI offense as well as the new crime or conviction. At DiCindio Law, we represent people who are charged with all sorts of crimes, including DUI offenses when people are already serving probationary sentences.

Understanding probation

If you have received a sentence of probation, you are expected to adhere to a number of conditions. You may have to complete community service, meet with your probation officer, and appear in court when you are scheduled to do so. Depending upon the offense or your conviction, you may also be required to stay away from specific places or people or to refrain from using alcohol or drugs. Nearly every probationary sentence also includes a prohibition against committing new criminal offenses. In nearly every case, a DUI conviction will be counted as a violation of probation.

Determination of a probation violation

If you are accused of committing a violation of your probation, you will be scheduled for a hearing before a judge. The judge will hear your case and decide whether you violated the conditions or terms of your probation. At this hearing, the prosecutor is required to prove that you violated your probation by a preponderance of the evidence. This simply means that it is more likely than not that you committed what you are accused of doing. This burden of proof only applies to your probation hearing and not to the DUI offense itself. The prosecutor in your DUI case will need to prove that you committed the offense beyond a reasonable doubt to secure a conviction.

If you are convicted of a DUI or plead guilty to the offense, the prosecutor will be able to meet his or her burden of proof in your probation violation hearing. If you have only been charged, the judge in your case may make a determination based on the evidence in your DUI case according to the strength of the case against you or may continue your probation violation hearing until the new case is resolved.

What happens if you are found to have violated your probation?

If you are found to have violated your probation, judges have a number of different options available to them at your sentencing. The judge may add more time to your probation, order you to complete inpatient treatment, impose additional fines, order you to attend counseling, or revoke your probation and send you to jail.

If you are convicted of a DUI when you are on probation, the judge may order you to serve either a brief time in jail or up to the maximum time allowed for your underlying probationary offense. If you are facing a DUI charge while you are on probation, it is crucial for you to contact an experienced criminal defense lawyer.

What are the steps in the probation violation process?

When you are arrested for driving under the influence while on probation, the probation violation process will begin. You will have to appear in court for the DUI. Your probation officer will learn about your charges and start the process to revoke your probation by filing a statement of your violations with the court.

If you are arrested for violating probation, you may be sent to jail and be denied bond. Your lawyer can negotiate with the prosecutor to secure a bond or to establish that a probation violation did not occur. You will have to appear before a judge for a hearing about your alleged probation violation. Your defense lawyer will attempt to lessen the penalties if you are found to have violated your probation.

How will your DUI case be handled?

Your DUI case will proceed separately from your probation revocation proceeding, and any sentence that you might receive for a DUI conviction will be in addition to any sentence that you receive for violating your probation. The court may order any jail time to be served either concurrently or consecutively.

Pennsylvania follows a three-level system that is based on your BAC to determine the penalties for a DUI. The first tier is for a BAC of 0.08% to 0.099%. For the first offense at this level, you may be sentenced for up to six months of probation, be ordered to pay a $300 fine, be ordered to complete an alcohol safety school, and be ordered to attend a treatment program.

If you are convicted of a second offense DUI as a first-tier level, you may face from five days up to six months in jail and be ordered to pay a fine ranging from $300 to $2,500. You may also have your license suspended for one year and be ordered to install an ignition interlock device in your car.

For a third offense at the first tier, you may face from 10 days to two years in prison and be ordered to pay fines from $500 to $5,000. Your license will be suspended for one year, and you will have to install an ignition interlock device in your vehicle for one year. You may be ordered to complete a treatment program.

A second-tier DUI offense is for BACs ranging from 0.10% to 0.159%. For the first offense at this level, you may face from two days to six months in jail, a fine of $500 to $5,000, one year of license suspension, and attendance at an alcohol safety school. You may also be ordered to complete a treatment program.

A second offense DUI at the second-tier level could result in 30 days to six months in jail, a fine of $750 to $5,000, a one-year suspension of your license, mandatory installation of an ignition interlock device, treatment, and attendance at an alcohol safety school.

A third offense at the second-tier level may result in 90 days to five years of imprisonment, fines ranging from $1,500 to $10,000, an 18-month suspension of your license, attendance at a treatment program, and mandatory installation of an ignition interlock device.

The third tier is for people who have a BAC of 0.16% or higher, and people who are charged at this level face the most severe punishments. If you are convicted with a first offense at this level, you may be ordered to spend from three days to six months in jail, pay a fine of $1,000 to $5,000, face a one-year license suspension, be ordered to attend alcohol safety school, and possibly be ordered to attend treatment.

A second offense at the third tier may result in 90 days to five years in jail, a fine of $1,500 to $10,000, an 18-month license suspension, alcohol safety school, completion of a treatment program, and installation of an ignition interlock device for one year.

For a third offense at the third tier DUI level, you may be ordered to serve from one to five years in prison, pay a fine from $2,500 to $10,000, have your license suspended for 18 months, attend treatment, and have an ignition interlock device installed in your vehicle.

Get help from an experienced criminal defense attorney

If you have been charged with a DUI while you are on probation, it is important for you to retain an experienced criminal defense lawyer who is able to handle both your probation violation case and your DUI offense. Contact DiCindio Law today to schedule a consultation.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

Understanding Underage DUI in Pennsylvania

Many teens and young adults look forward to turning 21 so that they can start drinking alcohol. Some teens and adults who are under the age of 21 simply don’t wait and begin drinking while they are still too young. If you drink alcohol and then get behind the wheel of your car, you may be charged with a DUI even if you are not impaired and even if your BAC is below the state’s legal limit for adults of 0.08%.
The DUI laws are harsher for minors in Pennsylvania because they are likelier to be involved in crashes than more experienced drivers. To prevent people who are younger than 21 from drunk driving in the state, the laws are stricter for this age group. DiCindio Law is experienced in handling underage DUI cases and can help you to understand what to expect. Here is an overview of how underage DUI cases are handled in Pennsylvania.

Lower BAC limit for younger drivers

For adults in the state of Pennsylvania, the legal blood alcohol concentration limit is 0.08%. If you are younger than age 21, however, the legal limit is much lower. If you are younger than age 21, the legal limit at which you can be charged with a DUI is 0.02%. People who are younger than age 21 may be convicted of DUIs if they have any traceable amount of alcohol in their systems. This means that you could be convicted of a DUI even if you only had one drink if you are under age 21.

What are the penalties for an underage DUI?

The penalties for underage drinking and driving are harsher than they are for adults. Three main types of penalties exist for people who are convicted of underage DUIs, including time in jail, fines, and a suspension of driving privileges. If your BAC was 0.10% or higher, you could see substantial jail time depending on what number offense this is. If you are a repeat offender, you may spend time in jail while also losing your license for a long time.

Pennsylvania has a three-tier penalty system for DUI offenses that depends on the BAC levels of the people who are convicted. However, if you are underage, you will automatically face the penalties for a high BAC DUI even if you only had trace amounts of alcohol in your bloodstream. For a first offense, this means that you could have to pay a fine of $500 to $5,000 and could have your license suspended for a year.

If you are younger than age 18 when you are convicted of a DUI offense, your case will fall under the Pennsylvania Juvenile Act. You may be institutionalized, be forced to pay a fine, and be placed on probation. If you are 18 but younger than age 21, you may face the following penalties for a first-offense underage DUI:

  • Mandatory minimum jail time of 48 hours
  • Fine ranging from $500 to $5,000
  • Alcohol safety school
  • Other penalties such as treatment or community service

An underage DUI conviction also carries some collateral consequences beyond the legal penalties. If you have a criminal record, it could prevent you from obtaining some types of public and private scholarships. If you are already enrolled in and are attending college, your university may have its own disciplinary system for you, including a potential suspension from the college, being placed on probation at the college, or potentially being expelled.

Expungement of an underage DUI

For most people, a DUI cannot be expunged until they reach age 70 or have died. If you are granted entry into a diversionary court program for first offenders, you will be permitted to have your record expunged upon successful completion of the program. Expunging your underage DUI removes it from your criminal record. As soon as you have satisfied the conditions of the program, you are able to immediately petition the court for an expungement. This is important for you if you want to go to college and are getting ready to apply. Some colleges require that their students have clean criminal records before they are admitted and then to maintain clean records while they are attending. Expunging your DUI conviction can help you to gain admission into the college or university that you want to attend and to be eligible for more public and private scholarships.

Can an underage DUI case be won?

It is possible for you to win your underage DUI case at a trial, but it will depend on the facts of your case. An attorney may review what occurred and advise you on whether it makes sense to take it to trial.
A criminal defense lawyer at DiCindio Law may also be able to negotiate with the prosecutor to reduce your charges through a favorable plea agreement. If you are facing an underage DUI charge, it is important for you to consult with an experienced criminal defense lawyer before you just plead guilty. An attorney may be able to identify potential defenses that you could raise and help you to build a strong defense case. An attorney may also be able to secure a better plea bargain on your behalf by negotiating with the prosecuting attorney who is assigned to your case.

Getting an underage DUI charge can have long-lasting consequences. It is important for you to talk to an attorney at DiCindio Law if you are facing this charge or have already completed your sentence and want to get an expungement. Contact us today to schedule an evaluation of your case.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

How to Avoid a Criminal Record for First-Time Offenders

If you have a criminal record, it can seriously impact your life. A conviction can cause you to lose your job or to have problems finding a new position. Some convictions may cause you to lose your ability to get financial aid for school. You could also lose your government benefits and have trouble getting into a college of your choice or into the military. If you are a first-time offender of a minor offense, you might be able to participate in a diversion program to avoid a conviction.

Every county in Pennsylvania has its own district attorney’s office. These offices have their own diversion programs and admission requirements. At DiCindio Law, we can advise you about whether you might qualify for a diversion program and help you to apply if you do. The benefit of these programs is that your charges could be withdrawn, and you might be able to have them expunged from your record. Some of the diversion programs that are available in Chester County include the following:

• Accelerated Rehabilitative Disposition Program or ARD
• Drug Court
• Mental Health Court pre-plea or post-plea diversion

What is a diversion program?

A diversion program allows you to have your criminal case diverted away from going to trial. Depending on whether your diversion is pre- or post-plea, you might not have to enter a plea of guilty or not guilty. You may be assigned a probation officer who will supervise your progress in the diversion program. When you successfully complete it, the charges against you may be dismissed or withdrawn. They can then be expunged from your record. Commonly, these programs require you to pay fines, perform community service, attend drug and alcohol treatment, and attend other classes. You may also be required to meet with the probation officer and to submit to drug and alcohol tests. If you are placed in a diversion program, it is important that you comply with all of the instructions so that you can complete it and have your charges dismissed.

The Accelerated Rehabilitative Disposition Program (ARD)

The ARD program was created by statute and is available in all counties in Pennsylvania. If you do not have any prior arrests or have a very limited history, you might be eligible for the ARD program. The ARD program may be available to you if you are facing charges for a low-level misdemeanor, including the following types (depending on the county you are charged in):

  • DUI
  • Receiving stolen property
  • Theft
  • Harassment
  • Simple assault
  • Criminal mischief
  • Disorderly conduct
  • Retail theft
  • Passing bad checks
  • Simple possession

The District Attorney determines who can be admitted into the ARD program. Even if you are facing one of the previously listed charges, the circumstances might result in you being rejected from ARD. Conversely, if you have been overcharged, it is possible that you might gain admission to ARD even if you are facing more serious charges.

Working with an experienced criminal defense attorney may help you to gain admission to the ARD program. An attorney might know how to complete the application and who to talk to at the DA’s office in order to give you the best chances of being admitted.

Drug Court

The Chester County Drug Court Program was the second such program in the state of Pennsylvania. This program is available to people who are charged with non-mandatory drug crimes or DUIs with drug offenses who do not have any record of violent offenses. In order to be eligible to participate, you must waive your right to a preliminary hearing and legally reside in the U.S.

The District Attorney has discretion about who to admit to the drug court program. Your lawyer can submit an application on your behalf, and you will have to complete a drug and alcohol assessment. If you are accepted, you will be assigned to a probation officer for intensive supervision. You will go through several phases during the program, and you must submit to drug and alcohol tests, appear before the court for regular reviews, and comply with all of the program’s rules. You will also have to actively seek or maintain a job or engage in productive activity each day and pay costs and fines. If you successfully complete all of the phases of the drug court program, maintain your sobriety, and have stable employment (among potential other conditions) the court will dismiss your charges and you can expunge them from your record.

If you violate any of the conditions of the drug court program, you can be removed from it or receive sanctions. The program takes from 12 to 24 months and goes through four phases. If you violate the program, the program may last longer. If you are removed from it, you will face the underlying charges and will have to handle them through the regular criminal court process.

Mental health court

The mental health court program is available on a pre-plea or post-plea diversionary basis or as a referral from probation. You may be eligible for mental health court if you are diagnosed with a mental illness or a dual diagnosis of a mental illness and a substance abuse disorder and have been charged with a misdemeanor or certain felony offenses. The mental health court staff complete screenings to determine eligibility. If you are accepted into the program, you will move through four phases. If your participation was completed on a pre-plea diversionary basis, the charges may be dismissed upon your successful completion. If you were referred and accepted to the program on a post-plea diversionary basis, you will be required to complete the programs supervision requirements after pleading guilty.

Contact DiCindio Law

If you are a first offender of a low-level misdemeanor offense or are facing charges for certain felony drug offenses, you may be eligible for a diversion program. Contact DiCindio Law to learn more about diversion and whether it might be a good choice for you.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

What Happens If You Receive a First-Offense DUI in Pennsylvania?

Being charged with driving under the influence of alcohol in West Chester, Pennsylvania can result in serious consequences that can have a negative impact on your life. If you are a first-time DUI offender, your DUI charge will likely be a misdemeanor offense that will not have as large of an impact on your life as a felony offense could. However, you might still face potential jail time, substantial fines, mandatory classes, and a loss of your driving privileges. If you are facing a first-time DUI offense, it is important for you to understand what to expect. Working with an experienced DUI defense attorney at DiCindio Law might help you to secure a more favorable resolution to your charge.

DUI arrests in Pennsylvania

If a police officer pulls you over in West Chester and suspects that you are driving under the influence, he or she will likely ask you to complete some field sobriety tests. Your performance on these tests will be a factor in whether you will be arrested. If the officer is able to establish probable cause to believe that you were driving drunk, you will be detained, processed, and asked to submit to a blood alcohol content test. You may then be released after a few hours have passed or during the morning.

Pennsylvania has an implied consent law. Under this law, your ability to drive is considered to be a privilege rather than a right. By the act of driving, you are considered to have implicitly given your consent to submit to blood alcohol concentration testing when you have been taken into custody on suspicions of drunk driving. If you refuse to test, the officer must then inform you that your driver’s license will be suspended. Basically, if you refuse to take a Breathalyzer test to ascertain the concentration of alcohol that you have in your blood, you will be deemed to have given up your privilege to drive in Pennsylvania.

The court process for DUIs

The court will send you a summons in the mail after you have been released. This paper will tell you when to appear for a preliminary hearing. If you want to retain an attorney, it is a good idea to hire him or her before your preliminary hearing. Your lawyer will review the evidence in your case and advise you about the options that you have.

If you plan to enter a plea of not guilty or to fight the charges, you should be prepared for a battle. It may be a matter of your word versus the police officer’s word. While the prosecutor always has the burden of proving that you committed the offense beyond a reasonable doubt, you will still need to prepare a strong defense case for a trial. If you decide to plead guilty to the charge, you will still be required to attend the hearing. If you do not appear in court, you can face additional penalties that can make everything more difficult.

Penalties for DUI cases

The penalties and fines that you might be assessed will depend on the facts and circumstances of what happened in your case. Your BAC at the time that you were arrested may impact the penalty range. Pennsylvania assesses penalties and fines for DUI cases into three tiers. The first tier includes DUI cases in which your BAC ranges from 0.08% to 0.099% or when it cannot be determined. Typically, the penalty for a first-tier DUI offense will include having a misdemeanor conviction on your record, a fine, and the possibility of probation.

A second tier DUI offense is one in which your BAC falls from 0.10% and 0.159%. Typically, you can expect to face a possible time in jail, a license suspension of one year, and a fine that is more substantial. You may also be ordered to undergo mandatory counseling or treatment.

The third tier of DUI offenses is reserved for people who have a BAC of 0.16% or higher. At this level, you can expect to face a longer period of time in jail and the highest possible fines. If your BAC falls into the third tier, you can also expect to face treatment or counseling that will be ordered by the court in addition to the other penalties.

What to do to avoid a DUI conviction

The best approach to DUIs is to avoid getting a charge to begin with. If you are planning to go to a bar or a party where alcohol will be served, take money with you for a cab, public transportation, or ride-share service. If you drive to a bar, ask the manager if it is okay for you to leave your car in the parking lot until the next day.

When you have been drinking, you might think that you can still drive. However, you have to remember that your thinking is impaired after you have had a few drinks and that you cannot make good decisions about driving when you are intoxicated. It is best for you to remove the temptation to drive home after drinking by taking a cab or using a ride-share service to get to the bar or party. If you drink and drive, you will place both yourself and others around you at risk.

Get help for a first-time DUI offense

If you are already facing a first-time DUI offense, it is important for you to talk to an experienced DUI defense lawyer at DiCindio Law. You should avoid entering a guilty plea too quickly and should have an offer that is extended to you reviewed by a lawyer. It is possible that your attorney might be able to identify strong defenses that you can raise to secure a better plea offer or a dismissal of the charge against you. To learn about the defenses that might be available to you and the potential penalties that you might face, contact our firm today by calling 610.430.3535.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale